The NFL’s collective bargaining agreement worked against Tom Brady in Deflategate, and it worked against Adrian Peterson, Greg Hardy, Ezekiel Elliott, and other players who ran afoul of commissioner Roger Goodell.
But the CBA will likely help Antonio Brown recover his $9 million signing bonus from the Patriots, who reportedly did not pay the $5 million installment that was owed last Monday.
“It’s one of the few occasions where a player can actually rely on the CBA and win,” said attorney Daniel Wallach, a sports legal expert for The Athletic. “I think the language protects the player’s signing bonus, and if you think about it, it makes a lot of sense. It is money that has already been earned.”
Brown is expected to file a grievance through the NFL Players Association to recover his $9 million signing bonus, and the $875,000 remaining in guaranteed salary this year. He earned $158,333 in his two weeks with the Patriots.
The Patriots may have a decent case to withhold the salary. But they likely face long odds in their battle over the signing bonus.
The pertinent language in the CBA lies in Article 4, Section 9(a), which outlines the four instances in which a player would commit a “forfeitable breach” of his contract: A failure to report to the team, incarceration, a non-football injury (such as Plaxico Burress shooting himself in the leg), or a voluntary retirement. None of those appear to apply to Brown’s situation.
“There was nothing he did that would cause CBA forfeiture provisions to kick in, and it is hard to see what other violation could cause his contact to be considered void,” said salary cap expert Jason Fitzgerald of OverTheCap.com. “Even though there is an ongoing investigation, the NFL made it clear he is free to sign with another team. So if he did not violate any NFL policies at the time of release, it is hard to see how they could argue that he did enough to void his contract.”
The Patriots may argue that Brown didn’t represent himself fully when signing the contract, and wasn’t transparent about the pending sexual assault lawsuit that was going to be filed. But the Patriots’ subsequent actions could work against them.
“The Patriots played him and continued to let him practice even after those came to light,” Fitzgerald said. “If those were of such an egregious nature to invalidate his contract, you would think they would have had to release him the minute the story broke.”
Precedent works in Brown’s favor, as well. Michael Vick and Burress both won arbitration hearings over their bonuses, and their teams were required to pay.
“I think it’s open and shut,” Wallach said. “Antonio Brown is not retired, not incarcerated, not injured, and he wasn’t a no-show. He doesn’t fall into any of those four boxes. And failing that, there is no legal basis under the CBA or the law for the Patriots to withhold his signing bonus.”
But the Patriots do have time on their side, and nothing to lose. The grievance may not be settled until sometime in 2020, and the Patriots will continue to earn interest on the $9.85 million. And if Brown needs that money now, the Patriots may be able to reach a settlement and reduce their obligation.
“The obstacle here is time, not law,” Wallach said.
The Patriots have a better chance of winning a grievance over the $875,000 salary, as Article 4.9(g) outlines the various circumstances in which teams can void guarantees of unearned payments. The big difference is that the salary is unearned while the signing bonus has already been earned, even though the Patriots split it into two payments and haven’t paid it out yet.
“The threshold for voiding a guaranteed salary is nowhere near as high as the threshold that would be required to void the signing bonus,” Fitzgerald said.
It’s a season of haves, have nots
The start of the 2019 season has been one that Charles Dickens would enjoy. The “best of times, worst of times” cliché applies for nearly half of the league.
Entering Week 4, the NFL had eight undefeated teams, and seven winless teams. Only once in NFL history has the league had eight undefeated teams at this point in the season (1998). And the NFL has never had more winless teams at this juncture, either — even when the NFL used to have Week 3 byes, and more 2-0 and 0-2 teams.
|Season||Undefeated teams||Winless teams|
How wide is the disparity so far? Consider:
■ Life is great at the top. Five teams are averaging at least 30 points per game — Baltimore, New England, Kansas City, Dallas, and San Francisco — and their combined record is 14-1. The only blemish was the Ravens’ loss to the Chiefs last week.
In Baltimore, Ravens fans are giddy over the development of second-year quarterback Lamar Jackson, who has the Ravens scoring a league-high 36.7 points per game.
In Kansas City, Patrick Mahomes is once again setting off fireworks and destroying the notion of a sophomore slump. Last week, he became the first player in NFL history to throw for 350 yards, three touchdowns, and no interceptions in three straight games. Now he gets to play his first career game in a dome on Sunday at Detroit. Over/under on his passing yards: 800.
The other undefeated teams are the Patriots, Bills, Cowboys, Rams, Packers (before losing Thursday), and Lions (2-0-1). Since the NFL expanded to 32 teams in 2002, teams that start 3-0 have made the playoffs 69.5 percent of the time.
■ On the poor side of town are seven winless teams, including five in the AFC. The Dolphins, Jets, and Broncos have the NFL’s three lowest-scoring offenses — the Dolphins aren’t even averaging a touchdown per game (5.3 points). The Steelers are 0-3 for the fourth time in 49 years and have to roll with a backup quarterback all year. The Bengals and Cardinals are rebuilding, and the Redskins are once again a total mess.
|Season||35-point wins||40 point-wins|
Only three other times since 2002 has the NFL had seven winless teams at this point in the season, and not since 2009.
■ There are still 13 games ahead, but the outlook for these teams is bleak. The Texans last year became the first 0-3 team to make the playoffs in 20 years, and it has only happened six times in NFL history.
■ Few observers expected the Broncos to have a dynamic offense this year with Joe Flacco at quarterback. But the defense under new coach Vic Fangio has been a massive disappointment so far.
Last year, the Bears’ defense with Fangio as coordinator allowed the fewest points in the league, created the most turnovers, and finished third with 50 sacks. But the Broncos have been historically punchless, becoming the first team in NFL history to not record a sack or turnover in three straight games.
This is no slouch of a defense, either. The Broncos still have Von Miller, Bradley Chubb, Derek Wolfe, Chris Harris, and several other accomplished players. Miller, a seven-time Pro Bowl selection, is so frustrated with the way things are going that his media availability on Thursday entailed him reading a 13-second statement and walking off.
Fangio, a first-time head coach at 61, is trying to figure out the balance between changing things or staying the course.
“There is the old saying, ‘If you keep doing the same thing and expect different results, that’s not very smart,’ ” Fangio said. “But there is also the saying, ‘Change for change sake isn’t very smart, either.’ So we’ve got to operate that fine line as a staff.”
■ The NFL is also seeing more blowouts this year. The average margin of victory (11.51) is up this year, but still in line with most of the last 20 years. But the NFL already has had two massive blowouts this year — Ravens 59-10 over the Dolphins, and Patriots 43-0 over the Dolphins. The NFL only had two 40-point wins in the 2017 and 2018 seasons, and none in 2016. Since 2002, the NFL averages 2.2 games per year with a 40-point win. This year, the pace is 11.3.
■ In the NFC North, every team has a winning record. The NFC West has two undefeated teams, and a combined record of 8-3-1.
■ On the flip side, the AFC North, AFC West, NFC East, and NFC South each only have one team with a winning record. The Chiefs and Cowboys already have a two-game lead over their entire division.
The Patriots and Bills have three-game leads over the Dolphins and Jets. The AFC North is 3-9.
The door hasn’t closed on Brown
A few other Patriots-related notes:
Don’t rule out a return to the NFL this year for Antonio Brown, especially if he is cleared to play following the league’s investigation. Brown probably burned his bridges in New England, but if he gets the green light from the NFL to play this year, some team — Kansas City, New Orleans, Seattle, Baltimore, Dallas — is going to take a chance on an All-Pro receiver.
Broncos boss John Elway joined WEEI this past week and expressed a sentiment that is likely shared by many around the NFL.
“I hope he gets things straight, because he is a great football player and we’d love to have him back in the league,” Elway said. “What he’s done is not right, so hopefully he can put that behind him.”
■ The Patriots could always try to trade for another veteran receiver or tight end before the Oct. 29 trade deadline. But the Patriots would first have to do some salary cap maneuvering, because as of Friday morning they only had $1.02 million in cap space, per the NFLPA.
The Patriots can always create cap space with an extension for Devin McCourty or Kyle Van Noy, or a restructure for Dont’a Hightower. But it makes trading for a player more complicated, and more likely that the Patriots would target a value option instead of a high-priced one.
Some high-priced options that the Patriots may not have the resources for: The Bengals’ A.J. Green ($9 million in salary left this season), the Broncos’ Emmanuel Sanders (about $8 million left), and the Cardinals’ Larry Fitzgerald (about $8.5 million left).
The Vikings’ Stefon Diggs is another name getting thrown around, but he is still owed $6.8 million this year, and another four years and $47 million on top of it. Seems pricey.
Mid-priced options include the Dolphins’ Albert Wilson (about $5 million left) and the Lions’ Danny Amendola (about $3.5 million left).
At tight end, Washington’s Vernon Davis (about $3.5 million remaining) and the Cardinals’ Charles Clay (about $1 million) are two names to consider.
■ Going on injured reserve not only takes a player off the field, but for several Patriots, it’s also costly on the wallet.
Center David Andrews will still make his $2 million salary this year, but he misses out on $1.1 million in incentives and bonuses. Fullback James Develin will miss out on at least $100,000 in roster bonuses, and will have a tougher time achieving his $100,000 Pro Bowl bonus. And rookies Yodny Cajuste and Hjalte Froholdt saw their salaries drop from $495,000 to $378,000 this season, while Keionta Davis’s salary reduced from $570,000 to $393,000.
Holdout really cost Gordon
Chargers running back Melvin Gordon either got bad advice about his holdout, or needs to start listening to advice.
Gordon, unhappy that he is playing on a fifth-year option and can’t get a long-term contract, finally reported to the Chargers this past week after skipping training camp and the first three games. He’ll still get paid for 14 weeks this season.
Had he reported to everything on time this year, Gordon would have made $5.605 million. It’s understandable that he would want to hold out for a higher salary, and/or reduce the wear and tear on his body so he can make it healthy to free agency next year. But Gordon should have read the fine print.
Gordon was fined $1.2 million ($40,000 per day) for skipping training camp, and has cost himself $989,000 in base salary by skipping three games. But because he was a former first-round pick playing on a fifth-year option, Gordon was subject to additional fines — the loss of a game check for each of the four preseason games he skipped.
All told, this holdout cost Gordon about $3.5 million, meaning he’ll only make about $2 million this season. And he still has 13 games in which to subject himself to injury and poor performance. Not the best risk-reward situation.
Director of officiating Al Riveron is sending a clear message to NFL coaches: “Don’t slow down our game with challenges of pass interference unless you’re really sure.” Riveron, almost certainly acting on orders from the league office, has established a very high bar for overturning pass interference calls or non-calls. Thursday night’s game was another example, when Riveron denied both the Packers and Eagles of a challenge of pass interference, even though the slow-motion instant replay made both plays look like clear penalties. But Riveron is doing all of us a favor by maintaining this high standard. The NFL does not need the game bogged down by instant replay. And replay should be used to correct only obvious mistakes, not to look for nitpicky fouls in slow motion . . . Since Ben Roethlisberger was lost for the season with an elbow injury, Steelers GM Kevin Colbert has traded a first-round pick for safety Minkah Fitzpatrick, and a fifth-round pick for tight end Nick Vannett. Steelers fans should be worried that Colbert, unsigned past this season, is mortgaging the team’s future to save his job . . . NFL owners have dropped their request for an 18-game schedule in the new CBA and instead are focused on a 17-game schedule, increased playoffs, and decreased preseason, per The Athletic. A 17-game schedule is interesting, because unless every team has a neutral-site game, it would create imbalance — half the league would have nine home games, and half would have eight. I’m sure no one would complain about the Patriots getting an extra home game in certain years.
. . . Bills running back Frank Gore is just 88 yards away from joining Emmitt Smith, Walter Payton, and Barry Sanders as the only players with 15,000 career rushing yards.
Quote of the week
“Talk to me when he has 33 percent of my Super Bowl titles.”
— Former Cowboys quarterback Troy Aikman on Twitter, responding to a tweet stating that Patrick Mahomes already has 36 percent of Aikman’s touchdown passes in just 8 percent of his games.